In a recent decision, the Wisconsin Supreme Court revisited the “ministerial duty” exception to governmental immunity. In Pries v. McMillon, 2010 WI 63, a majority of the court found that a state employee was not entitled to immunity for negligently disassembling horse stalls at the Wisconsin State Fair Park. According to the dissent, however, the decision opens up a can of worms by finding a ministerial duty in part based on unwritten procedures.

The Accident
Plaintiff Pries was one of 12 inmates who were brought to the State Fair Park to assist in taking down horse stalls. The defendant, McMillon, was supervising. At one point, Pries’ crew struggled to dislodge a stall piece. McMillon approached the inmates to assist, “jumped up” on and straddled a neighboring stall, and “started jerking it up and down with his hands.” As a result, unsecured stall pieces started falling in a “domino effect” on the inmates. Pries was struck, pinned and injured by a falling piece of a stall.

At trial, McMillon acknowledged that he did not have the ability to vary from the take-down procedure and confirmed that the same procedure had to be followed every single time. McMillon’s supervisor also testified there was no “legitimate reason” to stand on or shake unsecured stall pieces. In addition, McMillon’s coworkers testified to the importance of using chains to secure stall pieces during the disassembly process.

The Issue
Generally, government employees are immune from liability for their negligent acts under Wis. Stat. § 893.80(4). That statute immunizes government employees for any act that involves the exercise of discretion and judgment. The issue in Pries was whether one of the two exceptions to immunity applied: the ministerial duty exception or the “known danger” exception.

The circuit court concluded that McMillon was not entitled to immunity because the ministerial duty exception applied. The court of appeals affirmed the lower court’s finding that there was no immunity. Contrary to the circuit court, however, the court of appeals applied the known danger exception and declined to address the ministerial duty exception.

Supreme Court Affirms
The Wisconsin Supreme Court affirmed, but on the same ground as the lower court.

Writing for the majority, Justice Crooks held that the written take-down procedure created a ministerial duty to always have someone holding up the piece that was being taken down. The duty was specified at a time, in a manner, or upon conditions which are specifically designated and were not dependent upon McMillon’s judgment or discretion. The majority also found that the ministerial duty encompassed the proper use of chains during the disassembly process.

Because McMillon violated these ministerial duties, he was not protected by governmental immunity. The majority did not address the known danger exception.

In a concurring opinion, Chief Justice Abrahamson found no immunity based on the known and compelling danger exception. The nature of the danger was compelling and known to McMillon and of such force that McMillon “had no discretion not to act.”

The Dissent
The three dissenting justices criticized the majority for its reliance on testimony of co-workers, as opposed to the language of the written procedure, to define the ministerial duty. Justice Bradley reasoned that the majority used the testimony to expand the meaning of the written procedure. The result, she claimed, is a much broader duty than any duty identified in the text of the take-down procedure. The text of the procedure required that McMillon “have someone holding up the piece” that he was taking down, while the majority found a duty to “ensure” that the stall pieces were “secure from falling.”

Justice Bradley also accused the majority of conflating the standards for negligence and immunity. The dissent expressed concern that the majority opinion will be understood to provide that an officer who fails to exercise ordinary care – as opposed to clearly violating a non-discretionary, written policy – has violated a ministerial duty.

Justice Gableman also authored his own dissenting opinion, calling for a wholesale reexamination of governmental immunity rules under Wis. Stat. § 893.80(4).

Bottom Line
A state employee is not immune for negligence if the employee violates a duty based on a clear, established safety procedure. Government employers may wish to consult with their counsel regarding the effect of Pries on their procedures.

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